44 Ind. 382 | Ind. | 1873
This action was by the appellees against the appellants, McShirley, Jacob FI. Trick and his wife, James Scott, Eli Shockley, John C. Shoemaker, and David S. Caylor, and there was judgment for the plaintiffs. The first question to be considered is as to the sufficiency of the complaint, to which a demurrer was filed by the defendants and bverruled by the court, an exception having been taken, and the ruling assigned as error in this court. The facts alleged in the complaint are, in substance, the following: That on the 6th day of April, 1855, Greenup S. Pitman was the owner of the east half and the south-west quarter of the south-east quarter of section seventeen, township twenty-four, range four east, and on that day mortgaged the same to the State of Indiana to secure a loan of five hundred dollars, borrowed of’the college funds of the State; that afterward on the 31st
They pray that said sum of three hundred and eighty-two dollars and sixty-four cents be ordered to be paid to them by the Auditor of State; that Trick and wife be forever enjoined from setting up any claim thereto; for judgment against said McShirley, Caylor, and Trick for the amount of the balance to redeem the said land after the application of the • amount in the hands of Shoemaker, as such auditor; and that, on default of the payment thereof, said east half of said south-east quarter, etc., be decreed to be • sold for the payment to the plaintiffs of the amount of any balance that may be found to have been paid by them in the redemption of said thirty-nine acres to said Caldwell, over and above the amount of said overplus in the hands of the Auditor of State. They also pray for a restraining order, etc. Copies of the deeds referred to in the complaint are made part thereof and filed therewith.
The rule established or recognized in this court is, that when an owner of real estate has mortgaged several tracts of land in the same mortgage, and afterward sells and conveys the tracts of land embraced in the mortgage to different persons, the lands are liable to be sold on the mortgage for the payment of the mortgage debt, in the inverse order of their conveyance by the mortgagor. Aiken v. Bruen, 21 Ind. 137, and cases cited.
It is not shown that the appellees were under any legal obligation to pay the amount which they allege they have paid, or secured to be paid, to Caldwell, or that they really have paid any amount to him. It is alleged, “which sum the said plaintiffs or legatees of said Birt, being his widow and children, were compelled to and have paid, or secured to be paid, to said Caldwell by virtue of the warranty of the title aforesaid.” Without stopping to inquire whether this allegation shows a payment of the amount, or only a promise to pay the same, it seems to us that the plaintiffs do not show that they were under any legal obligation to pay the amount. The facts stated, that is, that they were legatees of the covenantor, and his widow and children, did not impose upon them any obligations to pay the debts of the deceased. - Assuming that the widow and children would have been liable, had it been shown that assets had descended' to them, it is not shown that such is the fact. The statement-that they were legatees might be true, if they were named in the will as such, although they never received any legacy, and it does not follow, because they aré the widow and children, that assets descended to them in any amount. Indeed, the statement that they were legatees implies that there was. a will, and that the estate may all have been disposed of by the will. That the plaintiffs had paid off the debt of the estate of their ancestors, growing out of this breach of his covenant, without showing that .they were under some legal obligation to do so, can give them no right of action to recover from the defendants the amount so paid, nor can they enforce the same against the said eighty acres of land-
There is another ground on which it is insisted the complaint is bad, and that is, that Hosbrook was an innocent purchaser for value, and that, therefore, the title which he conveyed to the eighty acres to Shockley would be good in Shockley, although Shockley, as alleged, had notice of the fact that McShirley, Caylor, and Trick had successively agreed to pay off the college fund mortgage. We can not see that Hosbrook, whether he had notice or not of the agreements by McShirley, Caylor, and Trick to pay the mortgage under which he purchased, could be at all affected by it. These successive agreements were all made after the execution of the college fund mortgage, under which Hos-brook purchased, and could not possibly affect.his title to the property. They were subsequent and collateral to the mortgage, and in no sense any part of it. The sale under the mortgage not only cut off the rights of the mortgagor, but also the rights of all those who claim under him. It is alleged in the complaint, that Shockley “ redeemed said land from said Hosbrook and took a quitclaim deed for the same for the sum of one thousand dollars, the said land at the time being of the value of thirty-five hundred dollars, he, the said Shockley, then and there representing to the said Hos-brook that he was purchasing the said land in the interest of the parties secured by the mortgage aforesaid,” etc. It is difficult to say what the pleader intended to charge here. The transaction is spoken of as a redemption, and also as a purchase by Shockley, and there was a quitclaim deed executed. The time for redeeming the land from the sale to Hosbrook had passed. It could not have been a redemption. We think it must be held to have been a purchase.
The judgment is reversed, with costs, and the cause remanded, with instructions to sustain the demurrer to the complaint, and grant leave to amend, if desired.